Affirm and Opinion Filed April 20, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-19-00698-CV

BEAMERS PRIVATE CLUB D/B/A PRIVAE LOUNGE; BAVARIAN 

MANAGEMENT, LLC, Appellants

V.

STACEY M. JACKSON, INDIVIDUALLY AND AS PERSONAL 

REPRESENTATIVE OF THE ESTATE OF JERRY BROWN, JR., Appellee

On Appeal from the 191st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-13-13245

MEMORANDUM OPINION

Before Justices Osborne,1 Pedersen, III, and Goldstein2

Opinion by Justice Pedersen, III

A jury found appellants Beamers Private Club d/b/a Privae Lounge and 

Bavarian Management, LLC liable to appellee Stacy Jackson under the Texas Dram

Shop Act for the one-car accident in which Jackson’s son, Jerry Brown, Jr., was 

killed. The jury apportioned responsibility for the accident equally between 

 

1 The Honorable David L. Bridges participated in the submission of this case; however, he did not 

participate in the issuance of this memorandum opinion due to his death on July 25, 2020. The Honorable 

Leslie Osborne has substituted for Justice Bridges in this cause. Justice Osborne has reviewed the briefs

and the record before the Court.

2 The Honorable Bonnie Goldstein succeeded the Honorable David Evans, a member of the original 

panel. Justice Goldstein has reviewed the briefs and the record before the Court.
–2–

appellants and the driver of the car, Joshua Brent. The trial court entered judgment 

against appellants for $12 million in actual damages, pre-judgment and postjudgment interest, and court costs and entered judgment against Brent for the same 

amount. In six issues, appellants challenge the sufficiency of the evidence supporting 

the verdict against them on dram shop liability, the denial of their motion to strike 

expert Mark Willingham, the submission of a question permitting damages to be 

awarded to Brown’s estate, the sufficiency of the evidence supporting the award of 

damages to the estate, and the award of certain pre-judgment interest. We affirm the 

trial court’s judgment.

BACKGROUND

The facts relevant to this appeal took place during the evening of December 7 

and the early morning of December 8 in 2012. Joshua Brent went to dinner with a 

group of teammates at Eddie V’s restaurant; Brent arrived at the restaurant at 

approximately 9:30 p.m. and left at approximately 11:30 p.m.3 He then returned to 

the apartment that he shared with his closest friend, Jerry Brown, Jr. The men had 

played football together in college; in 2012, Brent played for the Dallas Cowboys, 

and Brown was a member of the Cowboys’ practice team. Testimony established 

that their relationship was “like brothers.”

 

3 The record establishes that Brent drank the equivalent of six alcoholic drinks while he was at the 

restaurant.
–3–

Brent drove himself and Brown to the Beamers club.

4 The men arrived at 

12:42 a.m.,5and they went upstairs to the Privae Lounge, a VIP area of Beamers that 

featured bottle service of alcohol. The men were joined by friends and others drawn 

to their celebrity status, and both men drank alcohol while at Beamers. They left the 

club’s parking lot, with Brent driving, at 2:15 a.m.

Minutes later, at 2:19 a.m., Brent’s car automatically dialed 911 as it detected 

a loss of control. The record establishes that Brent was driving 110 miles per hour 

on a highway access road in Irving when he hit a dip in the road, failed to navigate 

a curve, and lost control of the car. The car rolled over multiple times and caught 

fire. Brent got out of the car and subsequently pulled Brown out. Irving emergency 

personnel arrived on the scene. Brown was taken to the hospital, where he died 

shortly before 3:00 a.m.

Brent was interviewed by Irving police officer Kevin Palms. Brent stated that 

he had been drinking only champagne and that he had been driving 70 miles per hour

“on the exit ramp,” but the accident was not near any exit ramp. Based upon Palms’s

assessment of Brent’s condition—which included the smell of alcohol on Brent and 

in the car; red, glassy, bloodshot eyes; and his confusion about where he had been 

driving—Officer Travis Huckaby gave Brent roadside intoxication tests. Brent failed 

 

4 Brent testified that he did not have anything to drink during the time he was at the apartment waiting 

for Brown to get ready to go to the club.

5 The club maintained cameras inside and outside the premises; video established relevant times with 

precision.
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all but one. He was arrested and charged, initially with intoxication assault and later 

with intoxication manslaughter. Tests were performed on blood drawn from him at 

3:27 a.m.; they indicated his blood alcohol content was .189, more than twice the 

legal limit.

Brent was tried and convicted of intoxication manslaughter. He served 180 

days in the county jail.

Jackson filed this lawsuit on behalf of herself and Brown’s estate. She sued 

appellants and Brent. In a week-long trial, jurors heard testimony from 

approximately a dozen witnesses, including Jackson, the police officers involved in 

the accident scene and subsequent investigations, the owner and a number of 2012-

employees of Beamers, expert witnesses, and Brent.6 Evidence admitted at the trial 

is discussed in more detail below. The jury found that appellants violated the Dram

Shop Act and that they were forty-eight percent responsible for Brown’s injury.7

Jurors awarded Jackson $15 million in actual damages and Brown’s estate $10 

million.8 The judgment assessed appellants’ share of the damages at $12 million.

This appeal followed.

 

6 Brent did not participate in the lawsuit other than to testify when called by appellee. He has not 

appealed the judgment against him.

7

The jury also found Brent to be forty-eight percent responsible and Brown to be four percent 

responsible.

8

Jackson’s award included: $2.5 million for loss of companionship and society she sustained in the 

past, $2.5 million for loss of companionship and society in the future, $5 million for mental anguish she 

suffered in the past, and $5 million for mental anguish in the future. The estate’s award was $10 million for 

Brown’s pain and mental anguish.
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DRAM SHOP LIABILITY

In their first and second issues, appellants challenge the trial court’s denial of 

their request for an instructed verdict on liability under the Dram Shop Act and the 

jury’s finding of negligence pursuant to dram shop liability. 

The Dram Shop Act

Chapter 2 of the Texas Alcoholic Beverage Code is known as the Texas Dram 

Shop Act (the “Act”). See TEX. ALCO. BEV. CODE ANN. §§ 2.01–2.03. The Act 

modified common law by providing a statutory cause of action against providers9 of 

alcohol under specific circumstances:

Providing, selling, or serving an alcoholic beverage may be made the 

basis of a statutory cause of action under this chapter . . . upon proof 

that:

(1) at the time the provision occurred it was apparent to the provider 

that the individual being sold, served, or provided with an alcoholic 

beverage was obviously intoxicated to the extent that he presented a 

clear danger to himself and others; and

(2) the intoxication of the recipient of the alcoholic beverage was a 

proximate cause of the damages suffered.

Id. § 2.02(b). This statute remains the exclusive cause of action for providing an 

alcoholic beverage to a person 18 years of age or older. Id. § 2.03(c). 

 

9

 The Act defines “provider” to mean “a person who sells or serves an alcoholic beverage under 

authority of a license or permit issued under the terms of this code or who otherwise sells an alcoholic 

beverage to an individual.” Id. § 2.01(1). “‘Provision’ includes, but is not limited to, the sale or service of 

an alcoholic beverage.” Id. § 2.01(2).
–6–

In this suit, Jackson pleaded that appellants provided alcohol to Brent when it 

was apparent to them that he was obviously intoxicated to the extent that he 

presented a clear danger to himself and others and that Brent’s intoxication caused 

the accident by which Brown was killed. Appellants’ first issue challenges the legal 

and factual sufficiency of the trial court’s denial of their motion for an instructed 

verdict on this ground.

In Question No. 1, the trial court’s charge asked jurors whether the negligence 

of appellants, if any, proximately caused Brown’s injury. The charge then instructed 

jurors that:

With respect to Beamers, “negligence” means providing an alcoholic 

beverage to a recipient when it is apparent to the provider that the 

recipient is obviously intoxicated to the extent that he presents a clear 

danger to himself and others. 

In their second issue, appellants challenge the sufficiency of the evidence supporting 

the jury’s affirmative response to this negligence question, which incorporates the 

Act’s standard.

Our analysis of both issues, therefore, requires us to assess the legal and 

factual sufficiency of the evidence supporting a finding that appellants violated the 

Act.10

 

10

 Appellants make several general references to gross negligence in their briefing, but they do not 

brief the issue specifically. The jury made no finding on gross negligence, indicating that jurors were not 

unanimous in their response to Question No. 1 or Question No. 6, which concerned gross negligence itself.
–7–

Provision of Alcohol at Privae

All witnesses who addressed the question agreed that Brent was not visibly 

intoxicated when he arrived at Privae. Testimony differed, however, as to how much 

alcohol was provided to Brent and how much he consumed while at the club.

Privae server Emerald Khan testified that Brent ordered, and she brought to 

his table, three bottles of champagne and—with assistance—approximately twenty 

glasses.11 Khan stated that she served Brent one glass of champagne, but she did not 

know how many drinks he was served while at Privae. Brent testified that Khan 

poured the champagne and left the glasses on the table; he stated he drank two 

glasses. 

Server Maria Fembres testified that she brought one bottle of Hennessey, a 

cognac, to Brent’s table and poured him one glass of Hennessey and Coke. Brent 

testified that he then poured one glass of Hennessey himself. He believes he drank 

more than those two glasses, but he did not know how much more. He acknowledged 

that at a certain point he just kept the bottle of Hennessy to himself. He did not mean 

he drank the whole bottle himself, but it was his bottle to drink.

Two of Brent’s teammates told the police that they had each ordered a bottle 

of vodka while at Beamers. A different pair of teammates reported seeing two bottles 

of vodka on Brent’s table. Brent testified he couldn’t remember whether there was 

 

11

 Witness estimates of the number of people in Brent’s party, which included three tables, ranged 

from fifteen to twenty-five persons.
–8–

vodka at the table or whether he drank any. Fembres testified that she did not see 

vodka bottles at Brent’s table and that she did not serve a bottle of vodka to that 

table. 

Ultimately, Brent testified that he did not know how much he drank at Privae 

because he could not remember specifics from the latter part of his time there. The 

club’s video from that morning shows Brent dancing while he held up and shook 

two bottles and appeared to be drinking directly from them. Both servers testified 

that they did not see this conduct by Brent.

A neighbor and friend of Brent’s, Aya Matsuda, was called by the defense. 

She testified that she arrived at Beamers and joined Brent at approximately 1:00

a.m., and she remained until about 1:45 a.m. She sat next to Brent all of that time 

except when she went to the bar to get one drink. She testified that she saw the three 

bottles of champagne delivered to the section, but she never saw Brent drink any 

champagne. She testified further that she saw no Hennessey—or any other type of 

alcohol—brought to the table, and she never saw Brent drink anything while she was 

there. She stated that dancing with bottles and drinking out of them was something 

Brent would not do. 

Along with these fact witnesses, the record includes testimony from Dr. Sarah 

Kerrigan, a forensic toxicologist called by Jackson. Kerrigan testified that Brent’s 

.189 blood alcohol level was based on a reliable test. In her opinion, Brent had to 

have consumed the equivalent of approximately fourteen standard drinks over the 
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course of the night to reach that level. Kerrigan opined that Brent would have 

reached his peak blood alcohol level relatively soon after his last drink given that he 

had been drinking throughout the evening and morning hours. She conceded that it 

is possible for a person to have an elevated alcohol level and to be legally intoxicated 

but not to show visible signs of intoxication.

Legal Sufficiency of the Evidence

In their first issue, appellants contend that the trial court should not have 

denied their motion for instructed verdict on liability because there was no evidence 

that Brent was sold, served, or provided an alcoholic beverage when it was apparent 

to appellants that he was obviously intoxicated to the extent that he presented a 

danger to himself or others. When reviewing a no-evidence issue, we ask whether 

the evidence at trial—crediting favorable evidence if reasonable jurors could, and 

disregarding contrary evidence unless reasonable jurors could not—would enable 

reasonable and fair-minded people to reach the verdict under review. City of Keller 

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We consider evidence in the light most 

favorable to the verdict, and we indulge every reasonable inference that would 

support the verdict. Id. at 822.

Appellants’ specific argument is that Brent was never visibly or obviously 

intoxicated while at Privae, so it could not have been apparent to appellants that he 

was. Appellants rely on the fact witnesses—Khan; Fembres; Matsuda; the club’s 

doorman, Howard Jason Black; and even Brent himself, observing video from that 
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morning—all of whom testified that they saw Brent exhibit no signs of intoxication 

while he was at the club. However, the requirement that intoxication be “apparent to 

the provider” does not mean that the provider must actually observe such signs of 

intoxication; if it did, any provider of alcohol could escape liability by turning a 

blind eye to signs of intoxication that would otherwise be plain, manifest, and open 

to view. See Perseus, Inc. v. Canody, 995 S.W.2d 202, 206 (Tex. App.—San 

Antonio 1999, no pet.). Instead, fact finders can infer what was “apparent” by 

weighing evidence, assessing the credibility of witnesses, and drawing reasonable 

inferences from the evidence. Id. at 207. In addition, what was “apparent” may be 

proved by circumstantial evidence. Id. Fact finders are always free to disregard the 

testimony of witnesses if they find it is not credible or is disproven by circumstantial 

evidence. See City of Keller, 168 S.W.3d at 827 (in legal sufficiency review we 

disregard contrary evidence unless reasonable jurors could not). In the end, the test 

for liability under the Act is an objective one. Steak & Ale of Tex., Inc. v. Borneman, 

62 S.W.3d 898, 902 (Tex. App.—Fort Worth 2001, no pet.).

In this case, there was direct evidence that Brent’s intoxication was manifest 

and open to view: a video exhibit showed Brent dancing, waving two bottles of 

alcohol, and drinking directly from them. The police investigating the scene of the 

accident reported visible signs of intoxication mere minutes after Brent left the club. 

There was circumstantial evidence as well: his blood alcohol level approximately 

one hour later was more than twice the legal limit, and expert witness Kerrigan 
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testified his level would have peaked shortly after his final drink. And expert witness 

Dr. Mark Willingham opined that appellants allowed Brent “to self-serve himself 

without appropriate supervision while he was obviously intoxicated to the extent that 

he was a danger to himself and others.”

12

We conclude—viewing the evidence in the light most favorable to the 

verdict—that a reasonable fact finder could have concluded that appellants served 

alcohol to Brent, or allowed him to serve himself, in violation of the standard 

imposed by the Act. Thus, the evidence was legally sufficient to support the trial 

court’s denial of appellants’ motion for instructed verdict. We overrule appellants’ 

first issue.

Factual Sufficiency of the Evidence

In their second issue, appellants contend the jury’s finding that appellants 

violated the Act is not supported by factually sufficient evidence.13 In considering a 

challenge to the factual sufficiency of the evidence, we review the entire record and 

may set aside the verdict only if it is against the great weight and preponderance of 

the evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 

 

12 Willingham’s opinions are addressed in more detail below.

13 We note that in the initial sentence of their discussion, appellants assert that the evidence was 

insufficient to show that they were “the sole proximate cause of Brown’s death.” That is not the causation 

standard under the Act. Instead, the Act requires Brent’s intoxication to have been the proximate cause of 

Brown’s death. See ALCO. § 2.02(b)(2). Other than this misstatement of the causation standard, appellants 

do not challenge the trial court’s or the jury’s conclusions—implicit in both the denial of the motion for 

instructed verdict and the jury’s verdict—that Brent’s intoxication was a proximate cause of Brown’s death.
–12–

2003). A finding is against the great weight and preponderance of the evidence if it 

is clearly wrong, manifestly unjust, or “shocks the conscience.” Id.

Appellants rely on the assertions of witnesses who contend they saw no signs 

that Brent was intoxicated at Beamers: both servers, the doorman, Brent’s friend 

Matsuda, and a number of his teammates who were interviewed in the investigation 

following Brown’s death. We consider this evidence in our analysis. We are not 

limited, however, to evidence that is contrary to the verdict: we look to the entire 

record to determine whether that verdict is clearly wrong or manifestly unjust. See 

Jackson, 116 S.W.3d at 761. Our review of that record identifies the following

evidence in addition to that addressed under our legal sufficiency discussion:

 Khan testified that she served Brent one glass of champagne. She spoke to 

him again when he paid for the champagne, and she did not observe any sign 

that he was intoxicated. But she acknowledged that she did not know how 

many drinks he had while he was there or what his condition was when he left 

the club. She also acknowledged that at Brent’s criminal trial she watched 

video from the morning of the accident, and she confirmed that the video 

showed Brent drinking out of a bottle, holding two bottles up while everyone 

was cheering and dancing, and holding the bottles in the air and shaking them.

 Fembres testified that she poured one Hennessey and Coke for Brent and that 

she went back shortly before he left to see if he needed anything else. She did 
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not observe any signs that he was intoxicated at either point in time. She did 

not know whether Brent served drinks for himself.

 Black testified that he interacted with Brent when Brent was leaving. Black 

watched him walk down several flights of stairs without difficulty. The men 

shook hands and spoke “very, very briefly,” and Black watch Brent walk to 

his car. Black testified that he did not observe any signs that Brent was 

intoxicated.

 Matsuda testified that she never saw Brent show signs of intoxication that 

morning, but she also testified that she never saw Brent with a drink the entire 

time she was sitting with him. And she testified further that she had been with 

Brent a number of times when he had become intoxicated, and his demeanor 

did not significantly change. 

 The police interviewed six of Brent’s teammates who were at Beamers the 

morning of the accident. Three stated that they were not in Brent’s section and 

they offered no information about what he drank or how he appeared. A fourth 

stated that he did not know what Brent had to drink, but he did not appear 

intoxicated. And the final two stated that (a) they had each ordered a bottle of 

vodka, and (b) Brent did not appear to be intoxicated to them. Two of the six 

reported seeing two bottles of vodka on Brent’s table, but Brent did not 

remember whether he drank any vodka at Beamers.
–14–

 Video taken outside Beamers indicates that Brent was able to drive out of the 

parking lot without incident. But video evidence also showed Brent dancing 

with two bottles held in the air, shaking the bottles, and drinking straight from 

them. 

At the time the servers and doorman gave their initial statements, which 

corresponded on the question of visible intoxication with their testimony at trial,

they were employees of the club. And Brent himself testified that his teammates 

“had his back” in the aftermath of the accident and Brown’s death. Despite these 

witnesses’ statements that they saw no signs that Brent was intoxicated, jurors could 

have reasonably concluded that their statements were subject to personal interest and 

were not credible. See City of Keller, 168 S.W.3d at 819 (jurors are sole judge of 

credibility of witnesses). Jurors could have determined that Brent’s intoxication, as 

seen on the club’s video, was apparent to anyone present and watching. See Canody, 

995 S.W.2d at 207 (jurors can infer what was “apparent” by weighing evidence, 

assessing credibility of witnesses, and drawing reasonable inferences from 

evidence). Because this Court is not a fact finder, we may not pass upon the 

witnesses’ credibility or simply substitute our judgment for that of the jury. Pool v. 

Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986). When we view all the evidence 

in a neutral light, we cannot say that the jury’s finding shocks the conscience.

We conclude that the jury’s finding that appellants provided alcohol to Brent, 

or allowed him to serve himself, when it was apparent that he was obviously 
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intoxicated to the extent that he presented a danger to himself and others was not 

against the great weight and preponderance of the evidence. The evidence was 

factually sufficient to support the jury’s finding that appellants violated the Act. We 

overrule appellants’ second issue.

DENIAL OF APPELLANTS’ MOTION TO STRIKE EXPERT

In their third issue, appellants challenge the trial court’s denial of their motion 

to strike the opinions of Jackson’s expert witness, Dr. Mark Willingham.

Willingham is a retired State Law Enforcement Major from the State of Florida’s 

Division of Alcoholic Beverages and Tobacco. His opinions first appeared in the 

case in the form of an affidavit, offered in response to appellants’ motion for 

summary judgment on dram shop liability. Appellants objected to the affidavit in 

their summary judgment reply and moved to strike the eight paragraphs of the 

affidavit that summarized his opinions. The trial court denied that motion.

Appellants renewed their objections to Willingham’s qualifications and to the 

reliability of his opinions before he testified. The trial court again overruled those 

objections.

Willingham summarized his opinions at the beginning of his testimony:

When you boil all of my opinions down, and I don’t have a copy of 

them in front me but the bottom line to me is that Beamers did serve 

Mr. Brent alcoholic beverages or by extension allowed him to self-serve 

himself without appropriate supervision while he was obviously 

intoxicated to the extent that he was a danger to himself and others.
–16–

Although Willingham developed other opinions, concerning matters such as 

Beamers’ policies related to alcohol service, this summary represents the gist of the 

opinions challenged by appellants.14

The admissibility of expert testimony is governed by rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise 

if the expert’s scientific, technical, or other specialized knowledge will 

help the trier of fact to understand the evidence or to determine a fact 

in issue.

TEX. R. EVID. 702. The trial court is the “evidentiary gatekeeper” responsible for 

excluding irrelevant and unreliable expert evidence. Exxon Pipeline Co. v. Zwahr, 

88 S.W.3d 623, 629 (Tex. 2002). It has broad discretion to determine the 

admissibility of evidence, and we will reverse only for an abuse of that discretion. 

Id.

Appellants object first to the reliability of Willingham’s opinions, arguing that 

Jackson failed to show how Willingham’s testimony met the requirements for 

reliability set forth in E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 

549 (Tex. 1995). “All expert testimony should be shown to be reliable before it is 

 

14

 Appellants make the conclusory statement that Willingham “opined about management, supervision, 

atmosphere and business of [appellants]. . . . Such opinion was completely inadmissible under TABC 2.02, 

2.03 and Steak and Ale, 62 S.W.3d 898” (record reference omitted). Both sides of the litigation offered 

extensive evidence concerning Beamers’s policies, training, and business practices. Any complaint 

concerning admissibility of this evidence was waived by appellants’ sponsoring of such evidence 

themselves and by their failure to offer legal analysis to support their conclusion on appeal. Similarly, 

appellants’ single-sentence assertion that Willingham was not qualified to testify concerning causation 

because he was not trained in accident reconstruction was neither raised at trial nor briefed adequately in 

this Court.
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admitted.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 

1998). However, Robinson’s analysis—on its face—is limited to scientific expert 

evidence and the methodology necessary to establish that scientific evidence is 

reliable. 923 S.W.2d at 557 (“[T]he underlying scientific technique or principle must 

be reliable. Scientific evidence which is not grounded ‘in the methods and 

procedures of science’ is no more than ‘subjective belief or unsupported 

speculation.’”) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 

(1993)). 

Jackson argues that Willingham’s evidence is rooted in his training and

experience, as rule 702 allows, rather than in scientific methodology. Accordingly, 

the reliability of his opinions are properly tested under a standard different from 

Robinson’s. We agree. Experience alone can provide a sufficient basis for an 

expert’s testimony in some cases. Gammill, 972 S.W.2d at 726. But to be certain that 

an expert qualified by experience is offering reliable opinions, we ask whether there 

is too great an analytical gap between his data and the opinions he proffers. Id. at 

727. An analytical gap exists if an expert fails to demonstrate how his observations 

support his conclusions. Id. In applying this reliability standard, the trial court does 

not decide whether the expert’s conclusions are correct; instead, the trial court 

determines whether the analysis used to reach those conclusions is reliable. Id. at 

728.
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As to his “data,” Willingham’s report identifies what he reviewed before trial 

to come to his opinions. The list includes Texas alcoholic beverage laws and Texas 

Alcoholic Beverage Commission Rules; documents related to the Irving Police 

Department’s and the TABC’s investigations; deposition transcripts or affidavits, 

including those from witnesses Huckaby, Fembres, Kahn, and Black; documentary 

evidence including the 911 transcript, crash photos, and drink receipts; and 

information related to appellants’ formation, policies, and training guidelines. When

Willingham testified at trial, he had also observed the trial testimony of Officers 

Palms and Huckaby, Kerrigan, Khan, Fembres, Beamers owner Daryush Dario 

Ferdows, and Brent. He had also seen the various video exhibits that had been played 

for the jury.15

We see no analytical gap between Willingham’s data and his conclusion that 

Brent was obviously intoxicated at Privae. Willingham cited specifics of Brent’s 

behavior at the club that he relied upon in reaching that conclusion: 

his holding up the bottles, acting in a manner that is inconsistent with 

who [he] is,

[16] his holding the bottle and self-pouring and drinking out 

of the bottle, and as we’ve talked, his rapid consumption of a large 

 

15 Appellants complain that Willingham’s original opinions were based only on still pictures extracted 

from Beamers video. However, he testified specifically concerning the video exhibits he watched during 

trial. We see no indication that his dependence on that evidence was inappropriate or unreliable when he 

testified. Moreover, seeing the video did not change Willingham’s opinion that had been based on still 

pictures; it merely reinforced that opinion.

16 Undisputed testimony from those who know Brent—including both servers, who coincidentally had

spent time with him socially before that morning, and Brent himself—established that he was quiet and 

reserved by nature.
–19–

amount of alcohol. Those are behaviors that even a poorly trained 

server who was paying attention should have noticed.

Based upon those facts, Willingham testified that Brent’s intoxication was “so 

obvious and open that a properly run business and properly trained managed 

motivated server should have observed that.” He explained that he was also basing 

his conclusion of obvious intoxication on the fact that Brent had a blood alcohol 

level of .189 about an hour after leaving, and upon Dr. Kerrigan’s testimony that it 

would have required about eight standard drink units while he was in Beamers to 

have achieved that BAC level. He stated: “Science informs me, not just the number 

of bottles laying around on tables.”

Willingham acknowledged at trial that his opinion contradicted the testimony 

of appellants’ employees and witness statements given by his Cowboy teammates, 

but such contradictions go to the weight jurors would give his testimony, not its 

admissibility. Willingham was subject to vigorous cross-examination; jurors were 

shown the weaknesses that appellants believed existed within his opinions. Jurors 

were free to accept or reject his opinions in part or entirely. But when Willingham 

testified at trial, the data that he relied upon included the majority of the documents 

and testimony that make up our record. We cannot say that his data was unreliable 

or that it could not support his conclusion. 

Appellants also contend that Willingham was unqualified to give the opinions 

he proffered. They object first that he was not trained as a toxicologist. But 
–20–

Willingham was not designated as a toxicologist or offered to give opinions on 

toxicology. Instead, Jackson identified Willingham as a testifying expert for trial

on the following three subjects: (1) the behavior that a reasonable server 

would have observed on the night of the incident given Joshua Brent’s 

level of intoxication, and the amount of alcohol he consumed during his 

short time at Beamers; (2) Beamers policies and procedures, and how 

Beamers’ failure to follow such policies and procedures caused 

Beamers to over-serve Joshua Brent; and (3) causation.

Jackson designated Dr. Kerrigan to give expert opinions on toxicology. And 

Willingham relied upon her opinions as data supporting his own conclusions.17

Appellants did not challenge Kerrigan’s opinions or qualifications in the trial court, 

and they have not done so here. We reject their challenge to Willingham’s 

qualifications in a field on which he was never designated to testify.

Appellants also argue that Willingham was not qualified to testify at trial 

because his “sole relevant experience” was earned in Florida, and Florida law 

concerning civil liability for serving alcoholic beverages differs from Texas law. 

Willingham’s training and experience are in the field of alcohol regulation. He holds 

a bachelor’s degree in criminology, a master’s degree in public and business 

administration, and a Ph.D. in business and corporate security, with a focus on

responsible alcohol retailing practices. He worked for 25 years in Florida’s alcohol 

regulatory agency where, he testified, he addressed a significant number of issues 

 

17

 In response to challenges to his lack of training in chemistry or toxicology, Willingham testified 

that “the opinions that I've published in this case do not have any findings on toxicology. I referred to Dr. 

Kerrigan solely in that regard.”
–21–

related to the operation of an alcoholic beverage establishment. He attended the FBI 

National Academy and earned a fellowship to study liquor-law enforcement and 

responsibility in the United Kingdom. He testified that he is active in a number of 

national associations dealing with the regulation of alcohol, including the National 

Liquor Law Enforcement Association, the National Conference of the Alcoholic 

Beverage Administrators, and the National Alcoholic Beverage Control Association.

We conclude that, contrary to appellants’ contentions, Willingham’s experience 

ranges well beyond Florida and its laws. Specifically, Willingham’s testimony made 

clear that he was familiar with the Texas Act and its standards. 

We conclude that Willingham is trained in his field and that his opinions were 

informed by extensive experience in the field of alcohol regulation. The trial court 

could have concluded that his opinions would be helpful to jurors as they applied the 

Act’s standards to the evidence before them. We discern no abuse of discretion in 

the court’s admission of Willingham’s testimony. We overrule appellants’ third 

issue.

SUFFICIENCY OF EVIDENCE SUPPORTING ESTATE DAMAGES

In their fourth issue, appellants contend that the trial court erred in submitting 

a jury question allowing damages to be awarded to Brown’s estate.18 The trial court 

must submit questions that are raised by the pleadings and the evidence. TEX.R.CIV.

 

18

 Appellants preserved this issue in their Motion for New Trial. See Cecil v. Smith, 804 S.W.2d 509, 

510–11 (Tex. 1991) (no-evidence point may be preserved by motion for new trial).
–22–

P. 278. A trial court may refuse to submit a question only if there is no evidence in 

the record to warrant its submission. Park N. Serv. Ctr., L.P. v. Applied Circuit Tech., 

Inc., 338 S.W.3d 719, 721 (Tex. App.—Dallas 2011, no pet.); see also Cunningham 

v. Haroona, 382 S.W.3d 492, 506 (Tex. App.—Fort Worth 2012, pet. denied) (trial 

court is obligated to submit question on controlling issue if evidence supporting

submission amounts to more than scintilla).19

Question Number 5 in the charge asked: “What sum of money would have 

fairly and reasonably compensated Jerry Brown, Jr. for his pain and mental 

anguish?” The question included the following definition: 

“Pain and mental anguish” means the conscious physical pain and 

emotional pain, torment, and suffering experienced by Jerry Brown, Jr. 

before his death as a result of the occurrence in question. 

Appellants contend that no evidence supported submission of this question, arguing 

that the evidence is “undisputed” that Brown was rendered unconscious at the point 

of impact, that he never regained consciousness, and that he died at the scene. We 

disagree.

 

19

 We agree with appellants that this standard parallels the standard for legally insufficient evidence. 

However, we do not address appellants’ argument concerning factually insufficient evidence to submit the 

question. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) (“The factual insufficiency of the 

evidence to support an affirmative answer to an opponent’s issue furnishes no basis for refusal to submit 

the issue.” (quoting Clarostat Mfg. Inc. v. Alcor, 544 S.W.2d 788, 791 (Tex. Civ. App.—San Antonio 1976, 

writ ref’d n.r.e.)). The trial court may refuse to submit a relevant question only if no evidence supports it. 

Id.
–23–

Texas law allows compensation for pain that is consciously suffered and 

experienced. Ruiz v. Guerra, 293 S.W.3d 706, 722 (Tex. App.—San Antonio 2009, 

no pet.). The existence of conscious pain may be established by circumstantial 

evidence or inferred or presumed as a consequence of severe injuries. Id. Direct 

proof of suffering is not necessary, but damages are not permitted for any period of 

time the injured person is unconscious. Casas v. Paradez, 267 S.W.3d 170, 185 (Tex. 

App.—San Antonio 2008, pet. denied). 

Officer Palms testified that when he arrived at the scene of the accident he 

checked Brown’s pulse and determined “there was barely a pulse there.” He stated 

that, based on his experience, he knew that Brown “was already gone for the most 

part.” However he testified that Brown was still alive when he was taken to the 

hospital. Officer Huckaby confirmed that emergency personnel were performing 

CPR on Brown as he was being taken from the scene. And Brown’s autopsy report 

states that he did not die until 2:57 a.m. We know, thus, that Brown survived the 

accident for a period of time.

Our inquiry, then, is whether the record contains more than a scintilla of 

evidence that Brown was conscious during some portion of that time that he 

survived. Palms’s testimony was conflicting concerning Brown’s consciousness: he 

agreed at one point that Brown was conscious when he arrived on the scene, but he 

later agreed that Brown never “regained” consciousness. However, the police took 

statements from witnesses who came upon the accident before police arrived. Two 
–24–

of those statements provide evidence that, when viewed in the light most favorable

to the verdict, indicate Brown was conscious and suffering after the accident. 

Pam Johnson told Palms that “she could swear she heard someone moaning 

from inside the car.” Appellants contend, and we agree, that moaning—standing 

alone—can be insufficient to prove pain and suffering, especially when it is 

undisputed that a decedent was unconscious at the time. See Carlisle v. Duncan, 461 

S.W.2d 254, 256 (Tex. Civ. App.—Dallas 1970, no writ). 

In this case, however, a second witness, Stacie McWilliams, reported hearing 

significantly more than moaning. When McWilliams came upon the accident, she 

left her vehicle and approached Brent.20 After he assured her that he was not injured, 

she spoke to a woman (presumably Johnson) who reported that she had already 

called 911 and that help was on the way. McWilliams reported that Johnson then

returned to her vehicle, but McWilliams remained standing in the roadway, “several 

feet back” of the burning car, waiting for emergency personnel. She told police: 

Then I heard a man begin to yell, “Help me!” in a hoarse and gravely

[sic] voice. My heart started to race and I literally jumped backwards 

as I screamed a question at [Brent]. I screamed at him if there was 

someone in the car and he said “Yes!” Again the man in the car whaled

[sic], “Help!” At this point I lost my composure and commanded 

[Brent] to pull the man out of the burning car. He responded to my 

command by advising that “He (the occupant) won’t get out!” I yelled 

again for him to pull the occupant out to which he responded again by 

saying "He won’t get out!” At this point I started BEGGING and 

PLEADING with him to PLEASE pull him out! We can’t just stand[]

 

20

 The record indicates that McWilliams did not know who Brent was; she referred to him in her 

statement as “the man in the black slacks.”
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here and watch this man die! [Brent] still did not move. I took a few 

steps towards the burning vehicle myself but the heat and flames were 

too much! At this point I was convinced [Brent] was not going to move 

so I turned and I ran back to my vehicle to get my cell phone to call 911 

again and to advise there was an occupant in what we previously 

thought was an empty vehicle.

Jurors reading this statement could reasonably have found that Brown was conscious 

and suffering as he cried out for help in the burning car. Johnson believed that she 

heard moaning from the car initially; McWilliams remained close to the burning 

vehicle and heard Brown “wailing.” These statements are evidence that Brown was

both conscious and suffering after the accident. 

In addition, the record indicates that the actual accident itself was likely the 

source of mental anguish in this case. Consciousness of approaching death is a 

proper element to be considered in evaluating mental suffering. Ruiz, 293 S.W.3d at

723. And this consciousness may be established by circumstantial evidence. Union 

Pac. R. Co. v. Legg, No. 03-07-00512-CV, 2009 WL 2476636, at *3 (Tex. App.—

Austin Aug. 12, 2009, no pet.) (mem. op.). Brent’s vehicle was traveling at more 

than 100 miles per hour when he lost control. It rolled over multiple times, came to 

rest on the roof of the car, and caught fire. The jury could reasonably have inferred 

that Brown experienced this extended and violent accident with anticipation of 

horrible injury or death.

We conclude that appellees presented more than a scintilla of evidence that 

Brown suffered conscious pain and mental anguish during and after the accident. 
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The trial court did not err in submitting Question Number 5 to the jury. We overrule 

appellants’ fourth issue.

In their fifth issue, appellants contend that the jury’s award of $10 million to 

Brown’s estate was against the great weight and preponderance of the evidence. The 

standard of review for an excessive damages complaint is factual sufficiency of the 

evidence. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) (per curiam). 21

Appellants cite authority for the propositions that jurors “cannot simply pick 

a number and put it in the blank.” See Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 

552 (Tex. App.—Fort Worth 2006, pet. abated) (citing Saenz v. Fid. & Guar. Ins. 

Underwriters, 925 S.W.2d 607, 614 (Tex.1996)). And they quote portions of the 

supreme court’s discussion in Saenz, which emphasized that a jury’s award for 

mental anguish damages must be fair and reasonable. See 975 S.W.2d at 614. 

However, appellants offer no reasoned analysis of why the jury’s award in this case

is not fair and reasonable. Instead, they merely reiterate their position that Jackson 

did not meet her burden to produce any evidence suggesting that Brown was 

conscious after the accident. The only inference we can draw from this position is 

that appellants contend there should have been no monetary award for pain and 

mental anguish.

 

21

 We understand this issue to challenge only the amount of the damages award. Appellants argue 

consistently throughout these two issues that there was no evidence of conscious pain and suffering. They 

present no factual-sufficiency argument concerning the existence of conscious pain and suffering. 
–27–

We have concluded, however, that the trial court properly submitted this 

question to the jury because the record contains more than a scintilla of evidence 

supporting the fact that Brown suffered conscious pain and mental anguish. 

Accordingly, some evidence supported the jury’s implicit conclusion that Brown 

suffered pain and mental anguish, and, therefore, some monetary award was 

appropriate. The jury has wide latitude in determining the amount of an award for 

pain and suffering. Burry, 203 S.W.3d at 552. “Matters of pain and suffering, which 

are necessarily speculative and not subject to precise mathematical calculations, are 

particularly within the province of the jury to resolve and to determine appropriate 

amounts.” SW Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 951 (Tex. App.—San 

Antonio 1997, no writ). 

In the end, we can set aside the jury’s verdict only if the evidence is so weak 

or the finding is so against the great weight and preponderance of the evidence that 

it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 

2001) (per curiam). We have concluded the evidence was sufficient for a jury to 

infer that Brown suffered mental anguish during the course of the accident and both 

physical pain and anguish while he was trapped in the burning vehicle. Appellants 

have given us no substantive rationale to reject the jury’s evaluation of that pain and 

anguish. We overrule their fifth issue.
–28–

PREJUDGMENT INTEREST

Appellant’s sixth issue asks whether the trial court abused its discretion in 

awarding prejudgment interest on future elements of damages. However, their 

argument under that heading is limited to a different matter: whether prejudgment 

interest properly accrued during the period in which appellants were in bankruptcy. 

Appellants rely on section 304.108 of the Texas Finance Code, which—they 

contend—allows the trial court to toll accrual of prejudgment interest after 

considering whether any delay or attempt to avoid liability was due to the fault of 

the party. Their bankruptcy, appellants argue, was not an intentional attempt to avoid 

liability. 

However, section 304.108 was repealed by the legislature in 2003, and it

cannot support any argument to toll prejudgment interest. Pilgrim’s Pride Corp. v. 

Burnett, No. 12-10-00037-CV, 2012 WL 381714, at *15 (Tex. App.—Tyler Feb. 3, 

2012, no pet.) (mem. op.) (“To hold that the court would retain equitable power to 

toll prejudgment interest for delays in the trial by the conduct of the plaintiff in spite 

of the repeal of the statute authorizing such relief would be in contravention to the 

repeal of Section 304.108.”). We find no existing authority supporting such a tolling 

of prejudgment interest. See Siam v. Mountain Vista Builders, 544 S.W.3d 504, 513 

(Tex. App.—El Paso 2018, no pet.) (trial court may not reduce or eliminate 

plaintiff’s prejudgment interest award because of delays caused by either party in 

resolving case); see also Matthews v. DeSoto, 721 S.W.2d 286, 287 (Tex. 1986) 
–29–

(“We disapprove the court of appeals language that a trial court has the discretion to 

reduce a plaintiff’s prejudgment interest award.”).

We overrule appellants’ sixth issue.

CONCLUSION

We affirm the trial court’s judgment.

190698f.p05

/Bill Pedersen, III/

BILL PEDERSEN, III

JUSTICE
–30–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

BEAMERS PRIVATE CLUB D/B/A 

PRIVATE LOUNGE; BAVARIAN 

MANAGEMENT, LLC, Appellants

No. 05-19-00698-CV V.

STACEY M. JACKSON, 

INDIVIDUALLY AND AS 

PERSONAL REPRESENTATIVE 

OF THE ESTATE OF JERRY 

BROWN, JR., Appellee

On Appeal from the 191st Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-13-13245.

Opinion delivered by Justice 

Pedersen, III. Justices Osborne and 

Garcia participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED.

It is ORDERED that appellee STACEY M. JACKSON, INDIVIDUALLY 

AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JERRY 

BROWN, JR. recover her costs of this appeal from appellants BEAMERS 

PRIVATE CLUB D/B/A PRIVATE LOUNGE; BAVARIAN MANAGEMENT, 

LLC.

Judgment entered this 20th day of April, 2021.